Douglas Zink v. Ron Barker

• Court: Court of Appeals of Texas
• Decided: August 23, 2013
• Docket: 06-12-00049-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-12-00049-CV

DOUGLAS ZINK, Appellant

V.

RON BARKER, Appellee

On Appeal from the County Court Franklin County, Texas Trial Court No. 1819

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Douglas Zink has appealed from a county court trial de novo appeal of a small claims

court judgment. Ron Barker agreed, in exchange for $25,300.00, to move a house onto Zink’s

property and perform renovations necessary to be able to rent the house. Zink was dissatisfied

with the quality of Barker’s renovations and brought suit in small claims court. Barker argued,

given the low price of the contract, that Zink got what he paid for. Zink responded that,

regardless of whether he got what he paid for, he did not get what he contracted for. Zink

prevailed in small claims court and obtained a judgment for $10,000.00. Barker appealed, and a

trial de novo occurred in county court. A jury concluded that Barker did not perform his

obligations under the contract but, despite evidence of damages, the jury also concluded that

Zink suffered no damages. The county court issued an “order” reciting the jury’s verdict and

stating, “IT IS SO ORDERED.” 1 Zink has appealed the county court’s judgment. 2

During our review of the record and the briefing in this case, we discovered a potential

defect in this Court’s jurisdiction. We notified Zink that we might lack jurisdiction over this

appeal and requested a response from Zink, which we have received and reviewed.

The record indicates this case was filed in small claims court on October 14, 2008. At

that time, courts of appeals lacked jurisdiction over claims originating in small claims courts.

See Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex. 2005); Ibezim v. Strunc, No. 03-09-00571-CV,

1 Although in unusual form, this judgment appears to be intended as a final judgment disposing of all parties and all issues. 2 Zink’s sole issue on appeal is that the evidence is factually insufficient. We express no opinion on the sufficiency of the evidence.

2 2010 Tex. App. LEXIS 1259 (Tex. App.—Austin Feb. 19, 2010, no pet.) (mem. op.); Schull v.

Seahorse Pools & Spas, No. 02-09-00431-CV, 2010 Tex. App. LEXIS 509 (Tex. App.—Fort

Worth Jan. 21, 2010, no pet.) (mem. op.). Zink’s first argument—that under the former Section

28.053 of the Texas Government Code, 3 this Court had jurisdiction over appeals in matters

originating in small claims court—is without merit.

We note that in 2009, the Texas Legislature amended the former Section 28.053 to grant

us jurisdiction over claims originating in small claims court between September 1, 2009, and

May 1, 2013. 4 This case, though, was filed October 14, 2008—eleven months prior to the

effective date of the 2009 legislative changes. Because this case was filed prior to the effective

date of the legislative changes, the 2009 amendments do not apply to this case.

Zink alternatively argues that the case actually originated in justice court rather than

small claims court. Zink directs our attention to the fact that the Franklin County Justice of the

Peace presided over the case. Former Section 28.002 of the Texas Government Code

specifically provided, “Each justice of the peace sits as judge of the small claims court . . . .” See

Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 1815 (repealed

3 See Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 1816, amended by Act of June 1, 2009, 81st Leg., R.S., ch. 1351, §§ 9, 14, 15, 2009 Tex. Gen. Laws 4273, 4274, 4282, repealed by Act of June 27, 2011, 82d Leg., 1st C.S., ch. 3, § 5.06, 2011 Tex. Sess. Law Serv. 116, 135 (West). 4 See Act of June 1, 2009, 81st Leg., R.S., ch. 1351, §§ 9, 14, 15, 2009 Tex. Gen. Laws 4273, 4274, 4282, repealed by Act of June 27, 2011, 82d Leg., 1st C.S., ch. 3, § 5.06, 2011 Tex. Sess. Law Serv. 116, 135 (West). Effective May 1, 2013, the Texas Legislature eliminated the distinction between small claims courts and justice courts by abolishing small claims courts and specifying that cases defined as small claims will be handled by justice courts. See Act of June 27, 2011, 82d Leg., 1st C.S., ch. 3, §§ 5.02, 5.06, 2011 Tex. Sess. Law Serv. 116, 134–35 (West) (current version at TEX. GOV’T CODE ANN. § 27.060 (West Supp. 2012)).

3 2011). Thus, the fact that the justice of the peace presided over the case does not indicate that

the case was actually filed in justice court rather than small claims court.

Zink also directs our attention to the facts that the original petition was file stamped in the

Justice of the Peace Court and the motion for new trial was captioned, “Justice Court of Franklin

County, TX.” Zink argues that because the record contains captions from both small claims

court and justice court, we should conclude this case was actually filed in justice court. This

Court has already resolved this issue. In Lister v. Walters, we determined that a case was filed

in small claims court when (1) the caption of the petition was small claims court, (2) the petition

substantially complied with the form for actions in small claims courts, and (3) the record

contained no order transferring the case to justice court. Lister v. Walters, 247 S.W.3d 381, 383

(Tex. App.—Texarkana 2008, no pet.). The facts of this case are similar to those of Lister. The

caption of the petition provides, “IN THE SMALL CLAIMS COURT of Franklin County, TX.”

The form of the petition substantially complies with the sample form for small claims court

petitions contained in former Section 28.012 of the Texas Government Code. See Acts of

May 25, 1987, 70th Leg., R.S., ch. 745, § 4, 1987 Tex. Gen. Laws 2672, 2672 (amended 1989),

repealed by Act of June 27, 2011, 82d Leg., 1st C.S., ch. 3, § 5.06, 2011 Tex. Sess. Law Serv.

116, 135 (West). Additionally, the record contains no order transferring this case to justice

court. In this case, the judgment entered by the Justice of the Peace is captioned, “In the Small

Claims Court of Franklin County, Texas” and is impressed with the official seal of the Small

Claims Court. We reject Zink’s argument that this case was filed in justice court rather than

small claims court.

4 This Court lacks jurisdiction over a case filed in small claims court in 2008.

Consequently, we dismiss this appeal for want of jurisdiction.

Jack Carter Justice

Date Submitted: August 22, 2013 Date Submitted: August 23, 2013